The primary objectives of the European integration process in the 1950s aimed at deepening the economic cooperation between the Member States, therefore, the external dimension of the 2012, pp. 292-311.; Angelos Dimopoulos: The common commercial policy after Lisbon: Establishing parallelism between internal and external economic relations? Croatian Yearbook of European Law and Policy, 2008/4. pp.
101-129.; Cremona, Marise: Balancing Union and Member State interests: Opinion 1/2008, Choice of Legal Base and the Common Commercial Policy under the Treaty of Lisbon, European Law Review, 35 (2010) 5 678-694.;
Christian Tietje: Die Außenwirtschaftsverfassung der EU nach dem Vertrag von Lissabon. Beiträge zum transnationalen Wirtschaftsrecht. Universität Halle-Wittenberg, 2009.
2 I will not deal with the explanations on the EU’s sensitivity to integrating non-trade issues in its trade policy agenda. It is remarkable however, that Europe has had always a stronger devotion to social issues, including e.g.
the environmental concerns, in comparison to the United States. In this narrower, environmental context, Ludwig Krämer emphasised more literally, that the idea of Adam Smith in Wealth of Nations regarding the concept of the
‘invisible hand’ has never gained as great importance in Europe as it had in the USA. This means that Governments in Europe, comparing with US, are seen as charged not only to promote liberty, but also to reduce inequalities in society. Ludwig Krämer: The Roots of Divergence: A European Perspective, In Green Giants? Environmental Policies of the United States and the European Union. American and Comparative Environmental Policy. (Eds.: Vig and Faure), The MIT Press , 2004., 57.
3 The “values-driven trade policy” is recent issue in the international trade law circles, predominantly in the USA, however the discussion is focusing on the policy issue itself, and not at all on its axiological, sociological context.
(The discussion was triggered in February 2014, when the U.S. Trade Representative, Michael Froman delivered a speech on the US post-crisis trade strategy, and brought non-trade issues, as ‘values’ into prominence. See “A Values-Driven Trade Policy”, Speech of U.S. Trade Representative Michael Froman February 18, 2014,
http://cdn.americanprogress.org/wp-content/uploads/2014/02/Center-for-American-Progress-Remarks-Ambassador-Froman-2-18-14.pdf ).
Community activities predominantly had of economic and trade-related nature.4 Accordingly, the objectives and principles of the CCP were laid down in a homogeneous, consistent and relatively closed structure. This consistency was driven, above all, by the objective of the liberalization, which allowed the legal and political framework of the CCP to develop in line with the Community’s free trade commitments to the international economic law. However, the expansion of the external policy horizon of the European Communities and the introduction of new policy areas led to conflicts of objectives more frequently, causing tensions between the CCP and other external policy areas. In the early 1970s, after making the foreign policy cooperation an embryonic feature (e.g. the establishment of the European Political Cooperation), the Member States and the EC institutions progressively faced the dilemma of coherence, and raised the question, how the objectives of the separate policy fields were relating to each other. Moreover, the trade and economic-related external policies and the foreign policy areas were distinct from each other pursuant to the model of cooperation. While the economic-related external policies, as the CCP, operated within the Community method and fell under the exclusive competence, 5 the Member States’ foreign policy co-operation worked within the intergovernmental cooperation. The separation of the external activities presented dilemmas especially in policy decisions when the policy fields concerned had overlapping or conflicting objectives.
Consequently, e.g. the economic sanctions might have been practically difficult to impose, because the policy decision required not only the economic and trade concerns to be taken into account, but the foreign policy interests had to be reflected as well. In other words, the main question was whether the CCP could be determined in isolation of its own logic based on the concept of the gradual, progressive liberalization and the principle of uniformity, or concerns of other external policy fields, being not necessarily of trade-related nature, could (or should) be respected in the same way.
The unification of the Community’s external activities would have resolved obviously this main dilemma, however the Member States, for obvious reasons of sovereignty, have put off the fusion of the foreign policy cooperation and other external policy fields for a long time, and before the reform of the Lisbon Treaty, the amendments of the primary law aimed only symbolic steps forward. Even though the text of the Single European Act referred already to the European Political Cooperation,6 i.e. the treaty recognized the Member States’ intergovernmental foreign policy cooperation as a functional institution and laid down the constitutional basis for that, the isolation of the external activities has not been dissolved. Afterwards, the Maastricht Treaty incorporated the Common Foreign and Security Policy into the European Union’s new construction, but the distinction between the Community and the intergovernmental activities, in form of separate pillars, remained in the new structure. The operation of
4 In addition to the Common Commercial Policy, the development cooperation and the conclusion of association agreements played the major role in the early external relations of the European Economic Community; See Panos Koutrakos: EU International Relations Law. Oxford, Hart Publishing, 2006. p. 5.
5 See e.g. Case 8/73 Hauptzollamt Bremerhaven v Massey-Ferguson, para. 3., ECLI:EU:C:1973:90; Case 41-76 Donckerwolcke v Procureur de la République, para. 31. ECLI:EU:C:1976:182; Case 38/75 Douaneagent der Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijnzen, ECLI:EU:C:1975:154; Opinion 1/75., ECLI:EU:C:1975:145.
6 See Single European Act (OJ L 169, 29. 6.1987), Title III. Treaty Provisions on European Co-Operation in the Sphere of Foreign Policy
the Community pillar, including the CCP was clearly detached from the pillar of the foreign and security policy, making difficult to implement of the idea of coherence.7 It is, however, hardly to deny, that the pillar system – especially in the post-Maastricht period – led to substantial changes in some overarching issues,8 but the objectives and principles of the diverging fields of the EU external relations were determined specifically. It was also remarkable that neither the European Court of Justice made strong efforts to dissolve the strict isolation of the external activities, conversely, the case law has evidently showed the tendency to strengthen the autonomy and separate character of the second pillar.9 The issue of coherence and unification of the external activities was set on top of the agenda of the European Convention, and following the failure of the European Constitution, the Treaty of Lisbon not only reshaped the fundamental character of the European Union and abolished the pillar structure,10 but put great emphasis on the coherence and consistency of the EU external action. This was the first resolute attempt to bring the whole Union’s action on the international scene under one ‘umbrella’ of values, objectives and principles.11 As a consequence, these constitutional and operational categories already has to be common in all fields of external relations, including not only the typical external policies, as the CCP, or the common foreign and security policy, but the external dimensions of EU policies (e.g. international environmental cooperation) are involved as well.
7 Article 11 TEU (as amended by Treaty of Amsterdam) also included a provision on principles and objectives, but this provision had been the introductory article of the provisions on the Common Foreign and Security Policy, which in its application had been limited to the second pillar. Panos Koutrakos: EU International Relations Law.
Oxford, Hart Publishing, 2006. p. 387.; Jürgen Schwarze: EU-Kommentar, 2nd ed., Baden-Baden, Nomos, 2009, Article 11 (1).
8 E.g. implementation of UN embargos: the Treaty of Maastricht provided first time the legal basis to act in a uniform procedure in implementing the UN Security Council decisions, and other collective economic sanctions against third countries (Article 228A of TEC as amended by Treaty of Maastricht), see Vera Gowlland-Debbas (ed.):
National Implementation of United Nations Sanctions. A Comparative Study. Brill Nijhoff, 2004, p. 198. Even the Maastricht Treaty left some place to the Member States to introduce unilateral economic sanctions, however, the leeway of the Member State’s action was disputed, Koutrakos offers the example of debate over the Greek sanctions on the Former Yugoslavian Republic of Macedonia, see: Panos Koutrakos: Trade, foreign policy and defence in EU constitutional law. Oxford, Hart Publishing, 2001. pp. 81-82.
9 In the pre-Lisbon era, the footprint of this tendency is palpable in the Kadi-judgement (Joined cases C-402/05 P and C-415/05 P. Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission, ECLI:EU:C:2008:461), in which the Court emphasized categorically the separation of supranational and intergovernmental competences. Cf. with Dominik Eisenhut: Delimitation of EU-Competences under the First and Second Pillar: A View Between ECOWAS and the Treaty of Lisbon. German Law Journal, Vol. 10 No. 05. 2009, p.
596.
10 The TEU joins together the numerous aspects of the EU’s external relations (called Union’s External Action in Title V TEU) that includes the policy areas covered by the TEU and TFEU, i.e. Common Foreign and Security Policy, Common Commercial Policy, economic, financial and technical co-operation, humanitarian aid, and the external aspects of its other policies. Even though the Treaty of Lisbon abolished the old three pillar structure, Article 24 highlights that “[t]he common foreign and security policy (CFSP) is subject to specific rules and procedures.”
11 See Article 2 TEU, Article 3 (5) TEU, and Article 21 TEU.